Lemke ex rel. Estate of Lemke v. Cass County

846 F.2d 469

• Court: Court of Appeals for the Eighth Circuit
• Decided: February 4, 1987
• Docket: No. 85-1139
• Status: Published

Opinions

PER CURIAM.

Paul Lemke, Frances H. Neitzel, and Community Refuse Disposal, Inc., brought this action under 42 U.S.C. § 1983 (1982), claiming that the Board of Commissioners of Cass County, Nebraska, in reversing its earlier zoning decision granting a permit to Lemke, Neitzel, and Community Refuse to operate a landfill, deprived them of property without due process of law. The district court,¹ adopting a recommendation of the magistrate, held that the state law procedures satisfied due process and granted summary judgment for the Board. On appeal, Lemke, Neitzel, and Community Refuse argue that a substantive due process claim arises from the Board’s reversal of its decision. We affirm the judgment of the district court.

Lemke and Nietzel leased real estate located in Cass County, Nebraska, to Community Refuse to operate a landfill for solid waste. They obtained an opinion from the Cass County Zoning Administrator that such use of the property would not require a change from existing agricultural zoning. The Cass County Board of Commissioners ultimately approved the use of the site as a landfill and, after complaints from adjoining landowners, conducted a second hearing in which the Board reaffirmed its earlier approval.

Omaha Fish & Wildlife Club, Inc., the owner of some nearby real estate, initiated litigation that resulted in a determination that the use of land as a solid waste landfill was improper under agricultural zoning. Omaha Fish & Wildlife Club, Inc. v. Community Refuse, Inc., 208 Neb. 110, 302 N.W.2d 379 (1981). Lemke, Neitzel, and Community Refuse applied to the Board for a zoning change from agricultural to industrial. The Board denied the application.

Lemke, Neitzel, and Community Refuse then brought this action claiming that the Board’s denial of the rezoning application was illegal, void, unreasonable, arbitrary and capricious, and deprived them of property without due process of law. After the district court entered summary judgment in favor of the Board, finding that due process was in fact afforded the appellants through the availability of state law procedures, a panel of this court heard argument. The panel called for rehearing by the court en banc to consider whether a substantive due process claim had been presented and whether our decision in Littlefield v. City of Afton, 785 F.2d 596 (8th Cir.1986), required reversal.² The case was then heard by this court en banc.

We conclude from the record in this case, and the briefs and arguments of counsel before this court en banc, that there was no error in the judgment of the district court. Whether a substantive due process claim may arise from a denial of a zoning permit is an open question in this circuit and need not be decided in this case. The judgment of the district court is affirmed.

1 . The late Albert G. Shatz, United States District Judge for the District of Nebraska.

2 . The district court relied in part on Creative Environments, Inc. v. Estabrook, 680 F.2d 822 (1st Cir.), cert. denied, 459 U.S. 989, 103 S.Ct. 345, 74 L.Ed.2d 385 (1982), in determining that the appellants suffered no due process violation. Our decision in Littlefield declines to follow Creative Environments. Littlefield, 785 F.2d at 604-06.